Cavasso

This is an appeal from a judgment in favor of plaintiff for the sum of one thousand dollars, with interest and costs of suit, in an action to recover upon a promissory note executed by the defendant to the plaintiff for said sum. The defendant in his answer admitted the execution of the note, but denied that the same had not been paid. He further averred that the consideration of the note had failed. He then proceeded to aver that the said plaintiff and himself had for some time prior to the making of said note been engaged in business as partners under the firm name of Downey-Cavasso Glass and Paint Co., doing business in the city of Oakland; that on or about October 31, 1914, the plaintiff had sold all of his right, title, and interest in said business and the goodwill thereof to the defendant upon the express understanding and agreement that the said plaintiff would not engage in any business in competition with the said defendant within the city of Oakland for the period of five years; that the making of such agreement was part consideration for the purchase by the defendant of the plaintiff’s in terest in said firm and for the execution of said promissory note as a portion of…